Is the FEC designed to fail?

A relatively commontalking point among the “reform community” is the idea that the Federal Election Commission is not merely a “failure,” but “designed to fail.” Really? When you think about it, the whole “designed to fail” language is silly. Who designs something “to fail”?

When people say the FEC is “designed to fail,” what they really seem to mean is that it is not designed to accomplish every thing that person would like to see accomplished at a pace that person would like. Presumably, people who agree with the speaker’s goals did not “design the system to fail” (though it is possible that the system was poorly designed, but that is hardly the same thing). Rather, it is more likely that the system was designed to accommodate various interests and concerns.

For example, if you believe, as many members of the so-called reform community seem to, that the FEC is supposed to be an agency with a broad mandate to roam the American political landscape, handing out stiff penalties before the election (i.e., usually without adequate time for due process) on a sort of “I know corruption when I see it” and an “everybody knows” standard of political influence, then its design makes it unlikely to ever succeed. If, on the other hand, one sees the FEC as an agency established to deal with a relatively narrow problem, while trying to respect for the Constitutional values and interests involved, with some check on the ability of the ruling party to use it as a political weapon, it’s design and effectiveness look a whole lot better. (The problem here becomes not whether the agency was designed to fail, but whether the mission is one that can ever be accomplished.)

This constant use of the “designed to fail” language, frequently used by the “reform community” in regard to the FEC, is based on the assumptions that government is not about balancing interests (including concern for due process, First Amendment rights, not squelching political participation through excessive regulation, and attempting to create a structure that prevents partisan abuse of the process), that bills are not passed through compromise, and that implementing one particular vision—the “reformist” vision that has, for decades, dominated the narrative of campaign finance—is the only legitimate function of regulation.

But by this measure of the “designed to fail” yardstick so blithely and regularly applied to the FEC, every government agency is “designed to fail,” since every government agency faces various checks and balances, opportunities for comment by interests opposed to those invoking the term “designed to fail” at any given moment, and due process constraints on its enforcement power.

Most remarkable is that in an area of law where both policymakers and the public regularly do express concern about the problem of partisan enforcement and rulemaking (think redistricting, voter ID laws, enforcement practices at the Voting Rights Division of DOJ, ballot access) so many people seem willing to ignore this problem when it comes to the FEC—suddenly, the checks on partisan excess mean the system is “gridlocked” and “designed to fail.”

Rather than being “designed to fail,” perhaps the FEC is designed to succeed—and those who use contrary terminology simply do not understand or have not adequately considered the full range of issues involved. That the FEC still cannot succeed in regulating political speech in a non-partisan manner that is consistent with the First Amendment and free, competitive politics may be the problem not of design, but of mission.